Is an ex-spouse entitled to inherit in Utah if there is no will?

When a person dies in Utah without a will, then the person is considered to have died “intestate” and the person’s distribution of that person’s assets is determined under the provisions of the Utah probate code dealing with intestate succession.  Utah’s intestate succession laws provide that a surviving spouse is entitled to a significant portion of the decedent’s estate.  However, under Utah Code 75-2-802, when a divorce decree has been entered or a marriage has been annulled, the ex-spouse is not considered to be a “surviving spouse” and is not entitled to inherit under intestate succession.

A legal separation does not legally terminate the husband-wife relationship.  Therefore, even if a court order has been entered creating a legal separation, the spouse will be still be entitled to inherit under intestate succession laws in Utah.  (Contrast this situation with Utah’s law governing health care decisions when no valid advance health care directive has been executed.  Under Utah law, a spouse who has been legally separated from the patient loses the first-place priority normally given to a spouse to act as a surrogate in making health care decisions for a person who is not able to make decisions or speak for himself or herself.)

Unlike an ex-spouse, a person’s current spouse is entitled to inherit under Utah intestate succession laws. If the decedent has no children, or if all of the decedent’s children are were born to the current spouse, then that current spouse is entitled to inherit 100% of the decedent’s estate.  If the decedent had children from another union, and if there is no will, then Utah law governing intestate succession provides for a division of the estate between the spouse and the children – approximately 50% to the spouse with the remainder being divided among the decedent’s children.

Creating a personalized estate plan including a will, and in many circumstances a living trust, ensures that your estate is distributed according to your wishes.  Contact us today to schedule an initial consultation with Utah estate planning attorney Stephen Howard.